Generally speaking, to be liable for a nuisance claim in Michigan, you must have possession or control over the land.
On June 10, 2014, the Michigan Supreme Court issued its opinion in Sholberg v. Truman, determining whether an absentee property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance, may be liable for an alleged nuisance.
Terri Sholberg, died when the motor vehicle she was driving collided with a horse standing in the road. The plaintiff, as representative of her estate, filed a claim against Daniel Truman, the owner of the horse, and Robert and Marilyn Truman, the title owners of the farm that Daniel operated.
Other than being title owners, Robert and Marilyn had nothing to do with the farm or the animals on it. The plaintiff presented evidence animals had escaped from the farm over 30 times between 2003 and 2010.
The circuit court entered a default judgment against Daniel, but granted summary disposition in Robert and Marilyn’s favor, concluding that they could not be held liable for a public nuisance because they were not in possession of the property.
The Michigan Court of Appeals affirmed in part, and reversed in part, holding that Robert and Marilyn’s possession ownership of the property was sufficient to allow a nuisance action against them.
The Michigan Supreme Court reversed, holding that Robert and Marilyn could not be liable for the public nuisance that arose from that property when Daniel was in actual possession of the property, exercised control over the property, and created the alleged nuisance.
Interestingly, Justice David Viviano, concurring in part, and dissenting in part, disagreed that the case could be decided as a matter of law on the issue of Robert and Marilyn’s control over the property. He noted that Robert and Marilyn supplied the financing to purchase the property, maintained insurance on the property, and took out a mortgage on the property.
The mortgage required Robert and Marilyn to maintain the property and prohibited them from permitting a nuisance on the property, abandoning the property, or leaving it unattended. He, nonetheless, would have held that summary disposition was proper because Robert and Marilyn had no knowledge of the nuisance on the premises.
In Michigan, the law in this area continues to be very favorable to the non-possessory, uninvolved property owner.
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